[39] The affidavit filed contained a defendant, said that he was of the type statement of alleged language of the of man who branded almost the whole judge, concerning a German who was American-German population; and that "charged" with making the statements one German-American, such as the deset forth. Upon receiving the af- fendant, talking such stuff, did more damfidavit the judge at once required of age to his people than thousands of them counsel whether the language ascribed could overcome by being good and loyal to him was not in fact uttered in citizens; and that he, the defendant, was connection with the disposition of the an illustration of the occasional American case of United States against one Weis- of German birth whose conduct had done sensell, in sentencing him after con- so much to damn the whole ten million viction by a jury of a violation of the in America. While this language might Espionage Act [40 Stat. at L. 217, chap. have been more temperate, there does not 30, Comp. Stat. § 10,212a, Fed. Stat. appear to be in it anything fairly estabAnno. Supp. 1918, p. 120] in the same lishing that the judge directed his obsercourt. Counsel informed the judge that vations at the German people in general, such was the fact. The judge asked coun- but rather that his remarks were aimed sel for Berger whether he had made any at one convicted, as was the defendant, of effort to ascertain the accuracy of the violation of law. statement alleged to have been made by As I understand the opinion of the the court. Counsel replied that he had court, notwithstanding the admissions of not. It would seem incredible that any counsel, and the sworn stenographic rejudge could have made such statements port of what took place, the affidavit concerning a defendant not yet tried in must be accepted, and if it discloses mathis court, in advance of trial, and upon ters which, if true, would tend to estaba mere charge of an offense. Counsel in lish bias and prejudice, the same must open court admitted that the offending be given effect and the judge be dislanguage was used in passing sentence after conviction in Weissensell's case. Moreover, upon the affidavit being filed, and after this admission of counsel, the district attorney offered in evidence a transcript of what took place and what was in fact said upon the sentencing of Weissensell. The judge permitted this stenographic report, sworn to by an experienced stenographer, who made it, to be a true and correct report of the statements made and the proceedings had, to be put into the record, saying that the truth should be shown of record in connection with the falsity, although he was of opinion that the facts stated in the affidavit failed to establish bias or prejudice against the defendants which would disqualify him from sitting at the trial. qualified. It does not seem to me that this conclusion comports with the requirements of the statute that reasons and facts must be set forth for the consideration of the judge. It places the Federal courts at the mercy of defendants who are willing to make affidavits as to what took place at previous trials in the court, which the knowledge of the judge, and the uncontradicted testimony of an official report, may show to be untrue, and in many districts may greatly retard the trial of criminal causes. [41] While, as I have said, in sentencing Weissensell the judge might have been more temperate in his observations, I am unable to find that the statements of the affidavit, when read in connection with the admissions of counsel, and the established facts as to what took place, as gathered from the stenographic report, showed such evidence of personal bias or prejudice against the defendants as required the judge, upon the mere filing of this affidavit, to permit its misleading statements to be placed of record, and to proceed no further with the case. This stenographic report, sent up with the certificate, and made part of it, and which there is no reason to believe fails to state accurately what took place, is in marked contrast with statements of the affidavit which the defendants made when seeking the disqualification of the [40] judge. It shows, as we have already stated, that the utterances of the judge were after conviction of Weissensell, It does not appear that the trial judge and were made when he was passing had any acquaintance with any of the sentence. It shows that the state- defendants, only one of whom was of ment of the judge concerning GermanAmericans was quite different from that stated in the affidavit, and referred to the type of man who had been convicted and was before him for sentence. The judge, in speaking of the convicted German birth, or that he had any such bias or prejudice against any of them as would prevent him from fairly and impartially conducting the trial. To permit an ex parte affidavit to become in effect a final adjudication of the disquali 1920. Defendants' affidavit discloses no ade- fication of a judge when facts are shown,, honest belief in the disqualifying state Of course, no judge should preside if he entertains actual personal prejudice towards any party, and to this obvious disqualification Congress added honestly entertained belief of such prejudice when based upon fairly adequate facts and circumstances. Intense dislike of a class Mr. Justice Pitney concurs in this dis- does not render the judge incapable of sent. [42] Mr. Justice McReynolds, dissenting: I am unable to follow the reasoning of the opinion approved by the majority, or to feel fairly certain of its scope and If an admitted anarchist consequence. charged with murder should affirm an existing prejudice against himself, and specify that the judge had made certain concerning depreciatory remarks anarchists, what would be the result? Suppose official stenographic notes other clear evidence should demonstrate the falsity of an affidavit, would it be necessary for the judge to retire? And what should be done if dreams or visions were the basis of an alleged belief? all or The conclusion announced gives effect To claim personal bias, without more, | It administering complete justice to one of In my view the trial judge committed no error when he considered the affidavit, held it insufficient, and refused to retire. PRODUCTS COMPANY, Plff. in Err., [44] ALASKA FISH SALTING & BY V. WALSTEIN G. SMITH. (See S. C. Reporter's ed. 44-50.) discrimination Constitutional law license tax. 1. There is nothing in the Federal Constitution that prevents a territorial license tax upon the manufacture of fish oil, fertilizer, and fish meal, in whole or in part, from herring, even though the tax he of other fish, or upon the offal of salmon. greater than that imposed upon similar use [For other cases, see Constitutional Law, 360-368, in Digest Sup. Ct. 1908.] 489 5. License taxes of $2 a barrel and $2 a ton, respectively, upon persons manufacturing fish oil, fertilizer, and fish meal, in whole or in part, from herring, imposed by the territorial legislature of Alaska, cannot be deemed to be repugnant to the Act of Congress of August 24, 1912, § 3, as an attempt to modify or repeal the fish laws of the United States, or the laws of the United States providing for taxes on business or trade, on the theory that Federal statutes imposing a tax on fish oil works and on fertilizer works in general terms (which can hardly be considered fish laws), import a license to a specific kind of works deemed undesirable by the local powers, especially since such section expressly declares that its provisions shall not operate to prevent the territorial legislature from imposing other and additional taxes or licenses. uniformity. [For other cases, see License, II.; Territories. II. in Digest Sup. Ct. 1908.] License territorial tax 6. The requirement of the Act of August 24, 1912, § 9, that all taxes in Alaska shall be uniform upon the same class of subjects, is not violated by treating the making of oil and fertilizer from herring as a different class, for purposes of license taxes, from the making of the same from salmon offal. [For other cases, see License. II.; Territories, II. in Digest Sup. Ct. 1908.] 8. A manufacturer of fish oil, fertilizer, and fish meal from herring may not complain that he is doubly taxed, first by the United States and then by the territory of Alaska, in view of the provisions of the Act of August 24, 1912, § 3, giving the territorial legislature power to impose taxes or licenses other than and additional to Federal taxes on business and trade. [For other cases, see License, II.; Territories, II. in Digest Sup. Ct. 1908.] [No. 166.] Note. On constitutional equality in On taxation of manufacturing corporations in the United States-see note to Williams v. Warren, 64 L.R.A. 33. On construction of statute according to purpose for which it was passed-see note to United States v. Saunders, 22 L. ed. U. S. 736. As to limit of amount of license feessee note to State ex rel. Toi v. French, 30 L.R.A. 415. As to the validity of class legislation, generally-see notes to State v. Goodwill, 6 L.R.A. 621, and State v. Loomis, 21 L.R.A. 789. As to constitutional equality of privileges, immunities, and protection, generally-see note to Louisville Safety Vault & T. Co. v. Louisville & N. R. Co. 14 L.R.A. 579. As to the power of Congress over territories, generally-see note to First Nat. Bank v. Yankton County, 25 L. ed. U. S. 1016. January 31, 1921. IND Division No. 1, of the Territory of Alaska, to review a judgment in favor of defendant in a suit to recover back license taxes alleged to have been illegally assessed. Affirmed. The facts are stated in the opinion. Mr. R. E. Robertson argued the cause and filed a brief for plaintiff in error: The allegations of the complaint must be taken as true because the case was decided upon demurrer. Dobbins v. Los Angeles, 195 U. S. 223, 234, 49 L. ed. 169, 174, 25 Sup. Ct. Rep. 18; American School v. McAnnulty, 187 U. S. 94, 103, 47 L. ed. 90, 94, 23 Sup. Ct. Rep. 33; St. Louis v. Knapp, S. & Co. Co. 104 U. S. 658, 661, 26 L. ed. 883, 884. The Constitution of the United States is in force and effect in the territory of Alaska, and local legislation in violation, ed. 696, 27 Sup. Ct. Rep. 419, 10 Ann. of the Constitution is void. Rassmussen v. United States, 197 U. S. 516, 528, 49 L. ed. 862, 867, 25 Sup. Ct. Rep. 574; Binns v. United States, 194 U. S. 491, 48 L. ed. 1088, 24 Sup. Ct. Rep. 816. It is the duty of the judiciary to consider the real nature and effect of legislation purporting to deprive citizens of rights secured by the fundamental law of the land. Mugler v. Kansas, 123 U. S. 623, 661, 31 L. ed. 205, 210, 8 Sup. Ct. Rep. 273; Galveston, H. & S. A. R. Co. v. Texas, 210 U. S. 217, 227, 52 L. ed. 1031, 1037, 28 Sup. Ct. Rep. 638; Austin v. Tennessee, 179 U. S. 343, 344, 45 L. ed. 224, 225, 21 Sup. Ct. Rep. 132; Choctaw, O. & G. R. Co. v. Harrison, 235 U. S. 292, 59 L. ed. 234, 35 Sup. Ct. Rep. 27; Atchison, T. & S. F. R. Co. v. Matthews, 174 U. S. 105, 43 L. ed. 913, 19 Sup. Ct. Rep. 609; Nicol v. Ames, 173 U. S. 509, 515, 43 L. ed. 786, 791, 19 Sup. Ct. Rep. 522; Dobbins v. Los Angeles, 195 U. S. 223, 49 L. ed. 169, 25 Sup. Ct. Rep. 18; Lawton v. Steele, 152 U. S. 133, 137, 38 L. ed. 385, 389, 14 Sup. Ct. Rep. 499; Tanner v. Little, 240 U. S. 369, 60 L. ed. 691, 36 Sup. Ct. Rep. 379; Postal Teleg. Cable Co. v. Taylor, 192 U. S. 64, 72, 73, 48 L. ed. 342, 346, 24 Sup. Ct. Rep. 208. The Constitution of the United States guarantees citizens the right and privilege to pursue a lawful business, and the tax which may be imposed upon the right to engage in an ordinary, useful, harmless business is not free from judicial control. Butchers' Union S. H. & L. S. L. Co. v. Crescent City L. S. L. & S. H. Co. 111 U. S. 746, 757, 28 L. ed. 585, 591, 4 Sup. Ct. Rep. 652; Allgeyer v. Louisiana, 165 U. S. 578, 41 L. ed. 832, 17 Sup. Ct. Rep. 427; Powell v. Pennsyl. vania, 127 U. S. 678, 685, 32 L. ed. 253, 256, 8 Sup. Ct. Rep. 992, 1257; Adams v. Tanner, 244 U. S. 590, 594, 61 L. ed. 1336, 1343, L.R.A.1917F, 1163, 37 Sup. Ct. Rep. 662, Ann. Cas. 1917D, 973; Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232, 33 L. ed. 892, 10 Sup. Ct. Rep. 533; Connolly v. Union Sewer Pipe Co. 184 U. S. 540, 46 L. ed. 679, 22 Sup. Ct. Rep. 431; Cotting v. Kansas City Stock Yards Co. (Cotting v. Godard) 183 U. S. 79, 81, 46 L. ed. 92, 93, 22 Sup. Ct. Rep. 30; Dobbins v. Los Angeles, 195 U. S. 223, 49 L. ed. 169, 25 Sup. Ct. Rep. 18; Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 41 L. ed. 666, 17 Sup. Ct. Rep. 255; Halter v. Nebraska, 205 U. S. 34, 51 L. Cas. 525; Holden v. Hardy, 169 U. S. 366, 390, 42 L. ed. 780, 790, 18 Sup. Ct. Rep. 383; Lawton v. Steele, 152 U. S. 133, 137, 38 L. ed. 385, 388, 14 Sup. Ct. Rep. 499; Mugler v. Kansas, 123 U. S. 623, 31 L. ed. 205, 8 Sup. Ct. Rep. 273; Barbier v. Connolly, 113 U. S. 27, 31, 28 L. ed. 923, 925, 5 Sup. Ct. Rep. 357; Booth v. Illinois, 184 U. S. 425, 428, 46 L. ed. 623, 625, 22 Sup. Ct. Rep. 425; W. W. Cargill Co. v. Minnesota, 180 U. S. 452, 468, 45 L. ed. 619, 626, 21 Sup. Ct. Rep. 423; House v. Mayes, 219 U. S. 270, 281, 55 L. ed. 213, 217, 31 Sup. Ct. Rep. 234; Otis v. Parker, 187 U. S. 606, 608, 47 L. ed. 323, 327, 23 Sup. Ct. Rep. 168; New York C. R. Co. v. White, 243 U. S. 188, 61 L. ed. 667, L.R.A.1917D, 1, 37 Sup. Ct. Rep. 247, Ann. Cas. 1917D, 629, 13 N. C. C. A. 943; Frisbie v. United States, 157 U. S. 160, 165, 166, 39 L. ed. 657-659, 15 Sup. Ct. Rep. 586; Murphy v. California, 225 U. S. 623, 628, 629, 56 L. ed. 1229, 1232, 41 L.R.A.(N.S.) 153, 32 Sup. Ct. Rep. 697; Smith v. Texas, 233 U. S. 630, 636, 58 L. ed. 1129, 1132, L.R.A.1915D, 677, 34 Sup. Ct. Rep. 681, Ann. Cas. 1915D, 420; Austin v. Tennessee, 179 U. S. 343, 361, 45 L. ed. 224, 233, 21 Sup. Ct. Rep. 132; Mountain Timber Co. v. Washington, 243 U. S. 219, 236, 61 L. ed. 685, 696, 37 Sup. Ct. Rep. 260, Ann. Cas. 1917D, 642, 13 N. C. C. A. 927; Patterson v. The Eudora, 190 U. S. 169, 173, 47 L. ed. 1002, 1005, 23 Sup. Ct. Rep. 821; Reinman v. Little Rock, 237 U. S. 171, 179, 59 L. ed. 900, 904, 35 Sup. Ct. Rep. 511; Sallsbury v. Equitable Purchasing Co. 177 Ky. 348, L.R.A.1918A, 1114, 197 S. W. 813; Fretwell v. Troy, 18 Kan. 275; Morton v. Macon, 111 Ga. 162, 50 L.R.A. 485, 36 S. E. 627; State v. Wilson, 101 Kan. 789, L.R.A.1918B, 374, 168 Pac. 679. Corporations are citizens within the protection of the 14th Amendment, according them the right and privilege to pursue lawful occupations. Lake Shore & M. S. R. Co. v. Smith, 173 U. S. 684, 690, 43 L. ed. 858, 861, 19 Sup. Ct. Rep. 565; Minneapolis & St. L. R. Co. v. Beckwith, 129 U. S. 26, 32 L. ed. 585, 9 Sup. Ct. Rep. 207; Smyth v. Ames, 169 U. S. 466, 522, 526, 42 L. ed. 819, 841, 842, 18 Sup. Ct. Rep. 418; Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 154, 41 L. ed. 667, 17 Sup. Ct. Rep. 255; Southern R. Co. v. Greene, 216 U. S. 406, 412, 54 L. ed. 536, 540, 30 Sup. Ct. Rep. 287, 17 Ann. Cas. 1247; San Mateo County v. Southern P. R. Co. 13 Fed. 151, 7 Sawy. 517; Brushaber v. Timber Co. v. Washington, 243 U. S. The territorial legislation and the taxes imposed by it are in violation of the Constitution, because the legislature has plainly abused its taxing power by exercising it, not for revenue, but for the purpose of destroying rights and privileges accorded to the plaintiff by the Constitution and the Alaska Organic Act. Connolly v. Union Sewer Pipe Co. 184 U. S. 540, 563, 46 L. ed. 679, 691, 22 Sup. Ct. Rep. 431; Alaska Pacific Fisheries v. Alaska, 149 C. C. A. 262, 236 Fed. 52; McCray v. United States, 195 U. S. 27, 59, 49 L. ed. 78, 97, 24 Sup. Ct. Rep. 769, 1 Ann. Cas. 561; Brushaber v. Union P. R. Co. 240 U. S. 1, 23, 60 L. ed. 493, 504, L.R.A.1917D, 414, 36 Sup. Ct. Rep. 236, Ann. Cas. 1917B, 713. The legislation and the taxes imposed thereunder are unreasonable, arbitrary, confiscatory, and prohibitory, and unjustly discriminate against plaintiff and its business, and are in violation of the 14th Amendment of the Constitution of the United States, because plaintiff is denied the equal protection of the laws, and its property is taken from it without due process of law. 260, Ann. Cas. 1917D, 642, 13 N. C. C. A. 927; Rast v. Van Deman & L. Co. 240 U. S. 342, 60 L. ed. 679, L.R.A.1917A, 421, 36 Sup. Ct. Rep. 370, Ann. Cas. 1917B, 455; Missouri v. Lewis (Bowman v. Lewis) 101 U. S. 22, 31, 25 L. ed. 991, 992; Hayes v. Missouri, 120 U. S. 68, 71, 30 L. ed. 578, 579, 7 Sup. Ct. Rep. 350; Gibbons v. Ogden, 9 Wheat. 23, 6 L. ed. 28; Sinnot v. Davenport, 22 How. 227, 243, 16 L. ed. 243; Missouri, K. & T. R. Co. v. Haber, 169 U. S. 613, 626, 42 L. ed. 878, 882, 18 Sup. Ct. Rep. 488; Dobbins v. Los Angeles, 195 U. S. 223, 49 L. ed. 169, 25 Sup. Ct. Rep. 18; Adams v. Tanner, 244 U. S. 590, 61 L. ed. 1336, L.R.A.1917F, 1163, 37 Sup. Ct. Rep. 662, Ann. Cas. 1917D, 973; Allgeyer v. Louisiana, 165 U. S. 578, 589, 41 L. ed. 832, 835, 17 Sup. Ct. Rep. 427; Booth v. Illinois, 184 U. S. 425, 429, 46 L. ed. 623, 626, 22 Sup. Ct. Rep. 425; Ex parte Hutchison, 137 Fed. 950; Re Yot Sang, 75 Fed. 983; State v. Wright, 53 Or. 344, 21 L.R.A. (N.S.) 349, 100 Pac. 296; Hager v. Walker, 128 Ky. 1, 15 L.R.A. (N.S.) 195, 129 Am. St. Rep. 238, 107 S. W. 254; State v. Whitcom, 122 Wis. 110, 99 N. W. 468; Price v. People, 193 Ill. 114, 55 L.R.A. 589, 86 Am. St. Rep. 306, 61 N. E. 844; Winston v. Beeson, 135 N. C. 271, 65 L.R.A. 167, 47 S. E. 457; Ex parte Drexel, 147 Cal. 763, 2 L.R.A. (N.S.) 588, 82 Pac. 429, 3 Ann. Cas. 878; State v. Loomis, 115 Mo. 307, 21 L.R.A. 789, 22 S. W. 350; Scriven v. Lebanon, 99 Kan. 602, L.R.A.1917C, 460, 162 Pac. 307; Ellis v. Frazier, 38 Or. 462, 53 L.R.A. 454, 63 Pac. 642; Ottumwa v. Zekind, 95 Iowa, 622, 29 L.R.A. 734, 58 Am. St. Rep. 447, 64 N. W. 646; Laurens v. Anderson, 75 S. C. 62, 117 Am. St. Rep. 885, 55 S. E. 136, 9 Ann. Cas. 1003; Colorado Springs v. Siman, 61 Colo. 315, 157 Pac. 194; Re Richardson, 170 Cal. 68, 148 Pac. 213; Moffitt v. Pueblo, 55 Colo. 112, 133 Pac. 754; Sallsbury v. Equitable Purchasing Co. 177 Ky. 348, L.R.A.1918A, 1114, 197 S. W. 813: Alaska Pacific Fisheries v. Alaska, 149 C. C. A. 262, 236 Fed. 52; United Tanner v. Little, 249 U. S. 369, 382, 60 L. ed. 691, 701, 36 Sup. Ct. Rep. 379; Southern R. Co. v. Greene, 216 U. S. 400, 417, 54 L. ed. 536, 541, 30 Sup. Ct. Rep. 287, 17 Ann. Cas. 1247; Cotting v. Kansas City Stock Yards Co. (Cotting v. Godard) 183 U. S. 79, 109, 46 L. ed. 92, 108, 22 Sup. Ct. Rep. 30; Cooley, Const. Lim. 5th ed. 484, 486; State v. Haun, 61 Kan. 146, 47 L.R.A. 369, 59 Pac. 340; American Sugar Ref. Co. v. Louisiana, 179 U. S. 89, 92, 45 L. ed. 102, 103, 21 Sup. Ct. Rep. 43; State v. Wright, 53 Or. 344, 21 L.R.A. (N.S.) 349, 100 Pac. 296; Connolly v. Union Sewer Pipe Co. 184 U. S. 540, 562, 563, 46 L. ed. 679, 691, 22 Sup. Ct. Rep. 431; Atchison, T. & S. F. R. Co. v. Matthews, 174 U. S. 96, 104, 43 L. ed. 909, 19 Sup. Ct. Rep. 609; Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 159, 41 L. ed. 666, States v. McMillan, 165 U. S. 504, 510, 669, 17 Sup. Ct. Rep. 255; Bell's Gap R. 511, 41 L. ed. 805, 807, 808, 17 Sup. Co. v. Pennsylvania, 134 U. S. 232, 237, 33 L. ed. 892, 896, 10 Sup. Ct. Rep. 533; 194 U. S. 486, 491, 48 L. ed. 1087, 1088, Ct. Rep. 395; Binns v. United States, Yick Wo v. Hopkins, 118 U. S. 356, 370, 373, 30 L. ed. 220, 226, 227, 6 Sup. Ct. 24 Sup. Ct. Rep. 816; Simms v. Simms, Rep. 1064; Barbier v. Connolly, 113 U. 175 U. S. 162, 168, 44 L. ed. 115, 117, 20 S. 27, 31, 28 L. ed. 923, 925, 5 Sup. Ct. Sup. Ct. Rep. 58; Murphy v. Ramsey, 114 Rep. 357; Magoun v. Illinois Trust & U. S. 44, 29 L. ed. 58, 5 Sup. Ct. Rep. Sav. Bank, 170 U. S. 283, 42 L. ed. 747; License Tax Cases, 5 Wall. 462, 1037, 18 Sup. Ct. Rep. 594; Mountain | 468, 18 L. ed. 497, 500; Mugler v. Kan |